Withers v. State, 2004-KA-00827-SCT.

• Decision Date: 21 July 2005
• Docket Number: No. 2004-KA-00827-SCT.,2004-KA-00827-SCT.
• Citation: 907 So.2d 342
• Parties: Christopher R. WITHERS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

907 So.2d 342

Christopher R. WITHERS v. STATE of Mississippi.

No. 2004-KA-00827-SCT.

Supreme Court of Mississippi.

July 21, 2005.

Donald L. Kilgore, Oxford, attorney for appellant.

Office of the Attorney General by W. Glenn Watts, attorney for appellee.

Before SMITH, C.J., EASLEY and GRAVES, JJ.

SMITH, Chief Justice, for the Court.

¶ 1. Christopher R. Withers was convicted in Circuit Court of Neshoba County of the crime of statutory rape, under Section 97-3-65(1)(b) of the Mississippi Code Annotated, and was sentenced to a term of 30 years in the custody of the Mississippi Department of Corrections. Following the denial of his motion for judgment notwithstanding the verdict and/or motion for a new trial, Withers appeals to this Court.

FACTS AND PROCEDURAL HISTORY

¶ 2. During the trial the court held a competency hearing, as prescribed by Rule 601 of the Mississippi Rules of Evidence, to determine if the victim,¹ who was fourteen years of age, was competent to testify during trial. The court determined that the victim had the requisite capacity to testify. The victim testified that as the former stepdaughter of Withers, she had been subjected to sexual abuse, by Withers, since around the age of six or seven. She testified that when she was six or seven years old, while her mother and brother were gone, Withers would make her miss the bus and fondle her. She stated that this happened "[s]ometimes every day, sometimes every other day, sometimes every three days." The victim testified that in addition to being fondled by Withers, she was forced to partake in oral sexual acts. The victim testified by the time she reached the age of nine, that the abuse had "moved to" sexual intercourse. The frequency of the occurrence of the oral sexual acts and sexual intercourse ranged from every day to every three days.

¶ 3. The victim stated that she did not tell her mother about any of the incidents because "I didn't want to see my momma hurt ... because I knew she loved him, and I was scared of him." According to her mother, the victim "was afraid I'd take him back, because I had took him back so many times ... She said she was scared if she said anything before then, until she really knew it was over between us, that he would hurt her." The victim stated that she was scared of Withers because he "always told me never to say it `cause he'd come back." Withers was charged with and indicted for having sexual intercourse with the victim in August 2002. She testified that although her sixteen-year-old brother was present in the home when the rape occurred, he was asleep. The victim further testified that Withers moved out in May 2003, and the activity continued up until October 2002, when Withers left the residence because he and the victim's mother had separated. The victim stated that around May 1, 2003, was the first time she told anyone about what had occurred. She testified that the person that she told was her best friend, J.B., because J.B. kept asking her why she was crying. The victim stated she was crying because since Withers had moved out of her house, she was afraid he would hurt her eight-year-old stepsister, L.W. Although L.W. was not the child of the victim's mother, she and Withers had legal custody of L.W. during their marriage, and when they got a divorce in February 2003, L.W. went with Withers.

¶ 4. Once the victim told her best friend, J.B., about the abuse, J.B. encouraged the victim to tell Deputy Sheriff Clark Reynolds, whom the victim knew and trusted. Reynolds was a Deputy Sheriff with the Neshoba County Sheriff's Office and a resource officer assigned to the school that the victim attended. The victim did not talk to Deputy Reynolds the same day that she told J.B., but instead, did so about two or three weeks later. Deputy Reynolds testified that the victim and J.B. expressed their concerns about a "friend" they knew that was being sexually molested by the stepfather of the "friend." Both girls also expressed a great concern for the "friend's" younger sibling. The girls returned the next day and told Deputy Reynolds that the "friend" was really the victim. Deputy Reynolds, immediately contacted Carrie Robertson, the school counselor, Rita Gaines, a social worker, and Sasha Brown Reed, a social worker with the Department of Human Services [DHS]. Deputy Reynolds also contacted Ray Sciple, an investigator for the Neshoba County Sheriff's Department. Reed testified that the victim told her that in addition to the sexual abuse, she was forced to smoke marijuana, and drink vodka and Crown Royal and that this occurred while the victim's mom was either asleep or gone to work. The victim testified that DHS had contacted her mother and her brother, and it was then that she finally told her mother about the abuse.

¶ 5. Reed scheduled a doctor's appointment for the victim with Dr. Melanie Byram at the Sebastopol Clinic for May 19, 2003. However, Dr. Byram was unable to conduct a physical exam on the victim that day, so the examination was conducted on June 2, 2003. Dr. Byram, who was accepted as a pediatric physician expert, testified that the victim's hymen was no longer intact, and that she was able to conduct the examination by using a speculum. She testified that because the hymen was no longer intact and because she was able to easily utilize a speculum during the examination, both of these factors were "very suggestive that the child was sexually active." She did note, however, that sexual activity was not the only cause for a hymen to rupture, but ultimately concluded that "the fact that the speculum was introduced was, again, very suggestive, and you can't be a hundred percent sure, but it's suggestive that this child was sexually active."

¶ 6. Once the State rested, Withers moved for a directed verdict, and the judge overruled that motion. The trial ended with the jury finding Withers guilty of the crime of statutory rape, pursuant to Section 97-3-65(1)(b) of the Mississippi Code Annotated, and Withers was sentenced to a term of 30 years in the custody of the Mississippi Department of Corrections. Following the trial court's denial of Withers' post trial motion, this appeal ensued.

DISCUSSION

I. DID THE CIRCUIT COURT ERR BY LIMITING WITHERS' CROSS-EXAMINATION OF THE ALLEGED VICTIM?

¶ 7. The standard of review on appeal from evidentiary rulings is prescribed by Rule 103(a) of the Mississippi Rules of Evidence, which states that "[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of a party is affected." This Court has articulated the applicable standard of review in evidentiary rulings: "Our standard of review for the admission of or refusal to admit evidence is well settled. `Admission or suppression of evidence is within the discretion of the trial judge and will not be reversed absent an abuse of that discretion.'" Church of God Pentecostal, Inc. v. Freewill Pentecostal Church of God, Inc., 716 So.2d 200, 210 (Miss.1998). Abuse of discretion is found when the reviewing court has a "definite and firm conviction" that the court below committed a clear error of judgment and conclusion it reached upon a weighing of the relevant factors. Caracci v. Int'l Paper Co., 699 So.2d 546, 556 (Miss.1997).

¶ 8. On appeal, Withers asserts that he was prejudiced "by the trial court's abuse of discretion regarding his cross-examination of [the victim]." Withers cites Sanders v. State, 352 So.2d 822, 824 (Miss.1977), in which this Court held that the credibility of a witness may be impeached on cross-examination by showing bias, prejudice, motive, or hostility. Withers claims that during trial, his counsel was "not allowed to conduct a full-bore cross-examination of [the victim] and was limited in the number of questions he wanted to ask [the victim] regarding prior inconsistent statements." Withers asserts that he was prejudiced by not being able to fully cross-examine the victim in order to impeach her credibility as a witness.

¶ 9. As previously mentioned, the victim, on direct examination by the State, was allowed to explain why she did not tell anyone about the sexual abuse, and she answered that it was because she was afraid of Withers. Counsel for Withers attempted to impeach the victim's testimony by asking her about an occasion in February 2003, at the funeral of Withers' cousin, when she purportedly hugged Withers and told him she loved him. When the victim denied the occurrence of these events, the State objected, and the circuit judge instructed Withers' counsel to stay away from what he deemed was an attempt to discuss consent, which was clearly not an element of the crime of statutory rape. Outside of the presence of the jury, counsel for Withers informed the judge that the purpose for his series of questions was to lay the foundation to further impeach the victim's testimony with prior inconsistent statements made by the victim as well as the testimony of other witnesses who were present at the funeral home. This incident allegedly occurred at the McLain-Hayes funeral home in a coffee room, with five or six other people present. Deborah Withers, the wife of Withers at the time of trial testified that the victim asked Withers "`are you okay, daddy?....' And she walked over to Chris and she hugged him — she hugged his neck, kissed him on the cheek, and said I love you daddy." However, the victim stated that she did not remember hugging and kissing Withers goodbye. She stated that she did not sit by him and that she did not recall telling him to "take care, dad."

¶ 10. When Withers' counsel asked the victim whether in her written statements to a social worker and the officer that investigated the case that she claimed "that this was against her will," the State's objection was sustained by the circuit judge. Again, out of the presence of the jury, Withers' counsel made his objections and offered to the record that he was seeking...